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267 Ind. 27

366 N.E.2d 1168

Moon v. State

Indiana Supreme Court

Decided September 12, 1977

Indiana Supreme Court · decided 1977-09-12

Key passage — most relied on by later courts

“Conviction of a non-existent crime is fundamental error, Young v. State (1967) 249 Ind. 286 , 281 N.B.2d 797, which error, if apparent on the face of the record, cannot be ignored by the reviewing court.”

quoted by 2 later decisions, including Gee v. State, Anderson v. State

“"If kidnapping is not encompassed within the armed felony statute ... then no such offense of 'armed kidnapping' exists. That being so the conviction for 'armed kidnapping' is a nullity. Convic tion of a non-existent crime is fundamental error ... which is apparent on the face of the record and cannot be ignored by the reviewing court... We have no choice but to vacate appellant's conviction. In doing so we are not unmindful that appellant does not desire this relief, but correction of fundamental error is not intended for the advantage of the accused."”

quoted by 1 later decision, including Vandeventer v. State

Relies on Bartone v. United States · Kleinrichert v. State · Coleman v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1977-09-12

How this case has been cited

Cited by 22 later decisions — most recently October 2017

22 state decisions

10019771980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

DeBruler, J.

¶1 Appellant, while serving a life sentence at the Indiana State Prison in Michigan City, attempted to take the warden of that institution hostage. Appellant was charged with kidnapping, Ind. Code §35-1-55-1 (Burns 1975), and kidnapping for ransom, Ind. Code §35-1-55-3 (Burns 1975). Pursuant to a plea bargain agreement, a third count of commission of a felony while armed: kidnapping, Ind. Code § 35-12-1-1 (Burns 1975), was filed; appellant entered a guilty plea to this count and received a determinate fifteen year sentence. He appeals, seeking a determination that he was entitled to credit, against his fifteen year sentence, for time spent in prison serving his life sentence between the arrest and sentencing of appellant for this offense.

¶2 We need not consider the issue raised by appellant. In Coleman v . State, (1975), 264 Ind. 64, 339 N.E.2d 51, this Court held:

“The armed kidnapping conviction is invalid for the additional reason that kidnapping is not encompassed within the armed felony statute. . . . The relationship intended to be established by the statute was that a greater penalty should be assessed for armed ones. To include kidnapping within the purview of the statute would be to reduce the penalty rather than increase it — an absurdity which we do not ascribe to the legislative intent.” (Citations omitted.) 339 N.E.2d at 56.

¶3 *29 If kidnapping is not encompassed within the armed felony statute, Ind. Code § 35-12-1-1, then no such offense as “armed kidnapping” exists. That being so, a conviction for “armed kidnapping” is a nullity. Conviction of a non-existent crime is fundamental error, Young v. State, (1967) 249 Ind. 286, 231 N.E.2d 797, which error, if apparent on the face of the record, cannot be ignored by the reviewing court. Hudson v. State, (1976) 265 Ind. 302, 354 N.E.2d 164; Swininger v. State, (1976) 265 Ind. 136, 352 N.E.2d 473; Franks v. State, (1975) 262 Ind. 649, 323 N.E.2d 221; Kleinrichert v. State, (1973) 260 Ind. 537, 297 N.E.2d 822; Vawter v. State, (1972) 258 Ind. 168, 279 N.E.2d 805. We have no choice but to vacate appellant’s conviction. In doing so we are not unmindful that appellant probably does not desire this relief, but correction of fundamental error is not intended for the advantage of the accused. Bartone v. United States, (1963) 375 U.S. 52, 84 S.Ct. 21, 11 L.Ed.2d 11.

¶4 The conviction of appellant for “armed kidnapping” is reversed. This case is remanded to the Porter Superior Court with instructions that the judgment and sentence, and the order accepting appellant’s guilty plea, be vacated.

¶5 Givan, C.J., Hunter and Prentice, JJ., concur; Pivarnik, J., not participating.

¶6 Note. — Reported at 366 N.E.2d 1168.

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